In the absence of permission, the CBI cannot interfere with any case that takes place within the limits of AP and West Bengal any more.

After Andhra Pradesh Chief Minister N Chandrababu Naidu stated that Central Bureau of Investigation personnel will now have to seek prior permission before entry into the state for official work, his West Bengal counterpart has decided to follow suit.

On Friday, the Andhra Pradesh government issued a notification withdrawing consent accorded to officers of the investigation agency to carry out search and operations without informing it first. Later in the day, the West Bengal government too withdrew the free pass or "general consent" to the country's top investigation agency.

A notification by the Andhra government issued this week says the general consent accorded by the state to Delhi Special Police Establishment stands withdrawn. The CBI was constituted under the Delhi Special Police Establishment Act of 1946.

In the absence of this permission, the CBI cannot interfere with any case that takes place within the limits of AP any more. The state government cited lack of confidence in the CBI after its officials were accused in recent scams.

The state government will no more rely on the resources of the central institution for additional investigations in unresolved cases. With the latest decision, the CBI cannot conduct raids any more in AP and its functions would now have to be carried out by the Anti-Corruption Bureau (ACB) of AP within the state limits.

But more importantly, this also gives the ACB enough powers to conduct raids and searches on central government departments and institutions located in the state if there are any suspicions.

The decision is being seen as another flash-point between the centre and state government after Chandrababu Naidu-led TDP withdrew from the NDA earlier this year.

Naidu, who has been trying to mobilise opposition parties ahead of 2019 general elections, has in recent months accused the BJP and YSR Congress of plotting to destabilise the government.

He has repeatedly alleged that the Centre was using central institutions, including the CBI and the I-T department, to threaten the state and his ministers for demanding special status for Andhra Pradesh.

Banerjee, who has often accused the Centre of misusing the CBI for political vendetta, had backed Naidu’s move, which had given rise to speculation that she, too, may follow suit. “Chandrababu Naidu has done the right thing in saying he won't allow CBI in his state. The BJP can be note changers, history changers, policy changers, but they are not game changers. The country is in danger because of them. They are misusing powers,” she said.

Naidu also received support from Delhi Chief Minister Arvind Kejriwal, who took to Twitter to say the Income Tax department and the CBI were being misused. He also asked why the CBI had not arrested people involved in scams.

The move, however, did not go down well with the BJP, which alleged that it was an attempt by a "grand alliance of most corrupt parties" to ensure that its "corruption" was not exposed.

BJP spokesperson GVL Narasimhra Rao described the Andhra government’s order as a "clear mala fide exercise of power" to ensure that its "corruption" was not exposed, alleging that a "grand alliance of most corrupt parties" had taken shape to protect their interests.

Leaders of the Trinamool Congress government in West Bengal and the Gandhi family of the Congress were facing probe in "corruption" cases, he said, adding that it had led to a "convergence of their interests" with Naidu.

Can AP Do This?

Most states have given, what is called a 'general consent', to the central government for investigation of complaints of corruption against central staff. This implies that CBI need not require prior consent in each case and it can go ahead with investigation into complaints as and when received without referring them to the state for consent.

Similarly, this general consent that was given by Andhra Pradesh has now been revoked. But with Andhra Pradesh now revoking its consent, all CBI probes will be hampered in the state.

However, the legality of the government’s decision is still not clear.

Section 5 of the DSPE Act extends the powers and jurisdiction of special police establishment, including CBI, to other areas. But section 6 says that Section 5 shall not be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in a state without the consent of the government of that state.

On October 11, 2018, the issue had come up before the Delhi High Court as the CBI challenged if there was a need for prior sanction from the Chhattisgarh government to investigate an offence in the state.

The Delhi High Court ruled that CBI need not seek the state’s consent, except when the case is registered in that state.

The Bench comprising Justice S Muralidhar and Justice Vinod Goel explained, “Provisions of the DSPE Act is to facilitate the CBI in carrying out its investigations. It would, therefore, be counter-intuitive if the task of the CBI is frustrated beyond the point of practicality. If in every such case the investigation is stalled because of the absence of sanction of a particular State other than the State where the case is registered, then the scheme of Sections 5 and 6 of the DSPE Act and their purpose would be defeated.”

In January this year, the Supreme Court had agreed to examine a plea of the CBI seeking a clarification on the nature of sanction needed from a state government for conducting any inquiry or investigation into an offence in the state.

The agency challenged a limited part of the order of the Delhi High Court passed in the case of former Himachal Pradesh chief minister Virbhadra Singh on March 31, 2017, in which it had said that the consent issue will be adjudicated by the trial court.

Additional Solicitor General PS Narasimha, appearing for the CBI, had said that the agency has challenged only the limited issue of consent in the high court verdict. The high court had stated that the matter be decided at the time of the trial.

The CBI has said that section 6 of the Delhi Special Police Establishment (DSPE) Act, 1946, does not talk about the nature of consent and, therefore, it needs a clarification on the issue as it would affect its power to investigate cases.